Czech Civil Service Reform: How to Trick the EU

EU accession requirements also deal with public administration (or the civil service), an area which may seem boring at first, but which — if not regulated and managed properly — can have a deep impact on corruption and the functioning of the political system of a country at large. The only EU country which lacks specific regulation of civil service is the Czech Republic.

The EU made administrative capacity-building a condition for EU membership before the accession of Central and Eastern European (CEE) countries in 2004 as it considered a professional and de-politicised civil service system necessary for a Member State to be able to implement and enforce the acquis communautaire. But politicisation and opacity of public administration is also central to systemic corruption.

To explain: estimates say that corruption in public procurement could cost the Czech budget between 1.5 and 4 billion euros a year. To compare, the state budget deficit was around 4 billion euros in 2012. In other words: much (if not all) of the country’s deficit could be covered by this money.

As ministries naturally control most of the country’s spending, much of the public procurement corruption can be attributed to the bad shape of the public administration. It is quite clear that there is a link between corruption and the funding of political parties — and since the large political parties need to run expensive election campaigns to stay in power, there is not much political will to stop the source of income that is corrupt public procurement.

What did the EU want?

Public administration is not an area of the acquis, and hence, there are no European legal acts for the (prospective) Member States to adopt. Therefore, the EU could not simply present the candidate countries with a detailed checklist or blueprint for the reform of their public administrations.

Civil service reform policy was based on the European principles of administration (also called ‘principles for a European Administrative Space’):

reliability and predictability (legal certainty),

openness and transparency,

accountability,

efficiency and effectiveness.

These principles gave the CEE governments flexibility in choosing the concrete institutional arrangement, as long as it was in line with the European principles of administration. In an OECD review, the civil service (CS) reforms in CEE countries were broken down into three levels of institutionalisation, determining the depth of institutionalisation (the formal-legal rules governing the civil service, the actual practices of civil service management, and the attitudes of civil servants towards various principles of civil service management) and eleven domains of civil service governance, which show the width of institutionalisation:

CS and administrative reform programmes,

the legal basis of the CS,

central management of CS policy,

systems for open competition,

systems for entrance examination and candidate selection,

systems of senior CS management (management and de-politicisation),

systems for the protection of CS employment,

systems of performance evaluation & review,

salary systems,

systems for training and development,

systems of civil servants’ rights and obligations.

What did the Czech Republic do?

Instead of reforming its civil service as requested, the Czech Republic has for over 10 years run its public administration under a combination of the provisions of the ordinary Labour Code and several particular regulations dealing with isolated domains. Put bluntly: the governments of the Czech Republic managed to trick the EU here by adopting a Civil Service Act in 2002, but never implemented it.

The current government further postponed the implementation of the 2002 Civil Service Act until 2015, and later started working on a new, replacement law. Many NGOs (in particular those united under the Reconstruction of the State project) claim the new proposal is an ‘alibi law’ and that the 2002 Civil Service Act would be a better option, even though several areas would need to be updated.

I decided to compare the two laws (as well as the status quo) against the European principles of public administration in my final paper at Maastricht University; the comparison confirmed that the 2002 Civil Service Act would indeed be the best option, although if adopted in its current form, there would be several domains which would not fit the European principles of public administration well and some aspects could use an overhaul.

The new proposal — although overall better than the status quo — has some critical flaws, especially regarding the central management of civil service policy and systems for candidate selection. Here, the incompatibility of the new proposal with the European principles is probably most striking: instead of striving for de-politicisation of the public administration, the government proposes to give complete control over the selection of candidates to ministers.

What is next?

Despite the growing pressure from civil society, the current political crisis threatens to halt the reform process completely. The prospects are grim for the government: the PM has resigned and the opposition, led by ČSSD (social democrats), is calling for early elections. The new government would likely dismiss the latest proposal and either start working on amendments to the 2002 Civil Service Act (which would be the optimistic scenario) or copy the current government’s tactic and claim a whole new law needs to be drafted.

Another scenario is possible: the word on the street is that President Zeman might want to take full advantage of the situation and install a caretaker government which would give him (indirect) access to more power. In either case, the reform process could be stopped for years.

It is a question for the EU: to what extent is the European Commission able (or willing) to ensure accession requirements are also respected after accession. The Commission reportedly threatened to stop payments from EU structural funds if the Czech Republic fails to finally comply with the EU requirements, but I have failed to find any evidence of such a threat and I wonder what would be the actual legal basis for such a decision.

A paper by Eli Gateva from FUB shows post-accession monitoring of Bulgaria and Romania is stronger. However, the Czech example shows it is perfectly possible for a Member State to essentially fake compliance with EU requirements and get away with it for nearly a decade; at least for the 2004 enlargement wave countries, which are still over one third of all Member States. I should hope that Commissioner Füle, a former Czech diplomat, kept this in mind and the Croatian counterparts of the canny Czech politicians will not be allowed to pull similar tricks.